Construction | August Issue
Costigan King
Full Service Commercial Law Firm | Construction | Energy | Fintech | Gaming | Dispute Resolution | Corporate
Welcome back to the Legal Lowdown: Construction Issue. This bi-monthly newsletter provides you with summaries of the latest legal cases in the construction industry so that you have the information you need to stay updated.
Our construction newsletter has been written and reviewed by one of our construction legal experts,?Dr Julian Critchlow?who has over 38 years' of expertise in the industry.
Adjudication – enforcement – Part 36 Offer
The Civil Procedure Rules provide that either a defendant or claimant may make a “Part 36” offer to the other party.? If the offer is not accepted and the offeror obtains a better result in litigation than the terms of the offer, the offeree may suffer adverse consequences, which can constitute having to pay additional interest, an additional lump sum (proportional to the sum claimed) and indemnity costs.? That is subject to the caveat that the Court may disregard to the offer if it would be unjust to do so.
?
IPS issued proceedings to enforce an adjudicator’s decision. ??In the course of the case, it made an offer to SBS to accept the amount of the Adjudicator’s Decision (￡325,502.32).? SBS did not accept it.? The Judge awarded the full amount of the Decision plus interest in addition.? Therefore, it had obtained a better result than the offer and would normally be entitled to the ancillary benefits. ?However, ?Alexander Nissen KC (Deputy High Court Judge) decided that, in this instance, it would be unjust to fix SBS with the consequences of non-acceptance.? That was because the offer was not really genuine: it sought the full amount of the claim and only forgave ￡350 interest.
?
(The Judge nevertheless enforced the Decision and granted IPS its costs on the indemnity basis because there was no real defence to the claim to enforce.)
Litigation – costs budgeting – relief from sanctions
Stargunter failed to file a compliant Precedent H Costs Budget.? The potential sanction was for its recoverable costs to be limited to court fees.? It applied for relief from sanction on the grounds that it had actively sought to comply with the relevant Order but had been unable to do so owing to particular administrative difficulties.? It was held that the Court was able to grant relief without a formal application’s having been made.? The court then had to apply the three stage test contained in Denton v TH White Limited [2014] EWCA Civ 90, i.e. the seriousness and significance of the default, why it occurred and then all the circumstances of the case.? It did so and granted the relief sought, while observing that it was not unreasonable for Henderson to have opposed the application.
Found this newsletter helpful?
Subscribe and get notified as soon as the next one is released.